Nov 12, 2014

A recent letter to the editor of our school newspaper, "Student papers should not have a say in political issues such as . . . gay marriage (which I think should be [sic] band).” The writer was disappointed with the news staff for pursuing stories that were based off campus, such as movie reviews, community events and political issues.

Our government was created in part to provide American citizens a voice and to participate in policy. Therefore, each newspaper, as a media source, has an obligation to inform the students of topics that directly relate to their lives. This includes same-sex marriage; in order that they can be informed on issues they may vote to support – or ban.

We educate and employ both same sex partners and Washington State voters. The school is also temporary home to students who are registered voters in other states. The issue of “gay marriage,” or same-sex marriage, is a matter close to many student hearts, regardless of their sexual orientation. It may be safe to assume many of the students, if not most, have a vested interest in what is happening in politics, which effects their lives wherever they choose to live.
Same-sex marriage has been on the forefront of U.S. national news lately, as gay married couples have appealed to the federal courts by filing lawsuits against the states where they live, which have bans against same-sex marriages and refuse to recognize marriages.

The result has been, as of the date of this article, 30 states within the United States are now allowing same-sex marriage. Many of these state decisions are a direct result of federal courts determining state bans against same-sex marriage as unconstitutional. The only two districts that have not joined the movement are the 1st and 8th judicial circuits.

The 8th Circuit Court of Appeals ruled in 2006 that Nebraska State’s Measure 416, prohibiting the recognition of same-sex marriages, was NOT unconstitutional – stating, "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States," and reversed the lower state court judge’s ruling striking the ban.

The 1st Circuit has yet to hear an appeal case relative to this issue. However, on Oct. 22, 2014, USA Today reported that a federal district judge in Puerto Rico upheld that territory’s ban on gay marriage. District Court Judge Juan Pérez-Giménez based his decision off of a precedent setting case and explained, “This court is bound by decisions of the Supreme Court. Only the Supreme Court may exercise the prerogative of overruling its own decisions." The plaintiffs will be appealing to the 1st Circuit Court of Appeals.

Where does Washington State fit into this issue? Our state voters decided their position by legalizing same-sex marriage in 2012, while many other states in the U.S. still hold to a “one man, one woman” definition of marriage, with state bans still in place.

On October 7, 2014, the 9th Circuit Court of Appeals, of which Washington State is one of 11 states and territories, also ruled that bans on same-sex marriages are unconstitutional. The state of Alaska is still attempting to fight the decision so they can continue to impose their state’s ban on gay marriage.

The decisions of the circuit court of appeals have broad ramifications. Dan White, one of EdCC’s law professors, explained, “It’s important to realize that each circuit court has jurisdiction over multiple states. So when one case decision from one state is appealed to the federal level and a decision is handed down, it doesn’t just affect that particular state. It affects ALL states within that circuit. So when we have 16, 20, now 30 states where same-sex marriage is allowed, it doesn’t mean the states have decided to accept it, but rather that there is a new rule of law in town.” This means that some states are being forced to allow same-sex marriage.

And, why is that? White proceeds: “It’s been determined that the states have the right to define marriage. However, when state laws are viewed as infringing on a person’s civil rights, it becomes a [U.S.] Constitution issue and that needs to be reviewed at the federal level, not the state level.”
In response to the federal court’s decisions, five states - Indiana, Virginia, Utah, Oklahoma and Wisconsin, located in the 4th, 7th and 10th circuits respectively - filed their own appeal to the Supreme Court.

The goal? The Supreme Court review and reverse the lower court’s decision, upholding each state’s right to both define marriage within their own state lines and enforce the marriage bans.

The Supreme Court refused to hear the appeals.

Scott Haddock is EdCC’s Program Director for the Paralegal Department, a civil rights attorney and professor of the Lesbian, Gay, Bisexual, and Transgender Law class. Haddock commented, “The Supreme Court is not stupid. They know that by not accepting the appeals it would result in the overturning of many state bans on same-sex marriage. It’s hard not to believe that this is all unfolding exactly the way the majority of the Court expected it to.”

The headline on CNN.com read, “Same-sex marriage gets tacit victory from Supreme Court.” The article quotes Evan Wolfson, president of Freedom to Marry, as stating, “Today's decision by the Supreme Court leaves in force five favorable marriage rulings reached in three federal appellate courts, ensuring the freedom to marry for millions more Americans around the country.”

Couples rushed to their local licensing offices to obtain marriage licenses. All court stays on same-sex marriages had been lifted. States where there didn’t seem to be an outcry for equality, suddenly were awarded the freedom to marry, as a by-product of location within the jurisdiction of its federal court.

Throughout the stories, an underlying message appeared: The Supreme Court supports same-sex marriage.

Not so fast. Is that what the court’s refusal means? Not entirely. According to The Aspen College Legal Research and Writing, “Approximately 8,000 petitions are filed with the United States Supreme Court each year.” How many of those cases are granted review? Approximately 100.

The book quotes an unnamed historian as stating that the decision of which cases to grant review is “arguably the most important stage in the entire Supreme Court process.” The literature states that just because the Supreme Court had denied reviewing a case, the denial does not mean the justices have researched the issue and agree with the lower court decision. It simply means the justices control their caseload by denying to review most of the appeal requests.

Haddock offers an explanation for the Court’s rationale: “The ‘Don’t Ask, Don’t Tell Act’ was an example where opposite decisions were being made all over the country. The Supreme Court had to review the appeals. Military personnel were allowed to serve in say, California, but not in, Wyoming. Here but not there. Haddock continues, "The Supreme Court did not have to make a final decision. Legislature repealed the act as they didn’t want the Supreme Court making a broader, sweeping decision about marriage. The Supreme Court does not want to be responsible to decide heavily controversial issues. They would prefer a larger voice to make the decision, and the Court is okay with how the Federal Appellate Courts across the country are resolving this issue in favor of marriage equality.”

Whatever the reason for the Court’s denial in hearing the state appeals, what happens in the meantime, while this issue remains in limbo, without a final national decision? What happens to the gay citizens in the 1st and 8th circuit who continue to live with marriage inequality, and what could possibly happen to their peers who are unifying and celebrating in 30 other states?

For those who’s marriages won’t be recognized: Their children are denied recognition as children of married parents. Same-sex married couple’s relationships are denied validation. They are forced to file a joint federal tax return but separate state tax returns. Property acquired and owned by the married couple is not recognized as a marital asset.

Same-sex married couples are not free to move wherever they want within the United States of America. They are restricted to live only where their marriages will be recognized; otherwise their union is labeled “illegal.”

For those who’s marriages are recognized by their residential state: The Supreme Court has sovereign power, which means that its decisions outrank and overrule all other courts of our nation. Those who pursue and consummate same-sex marriage run the risks of having their unions disintegrated if at a later date, the high court makes a final decision the opposite of the lower court of appeals.

This is concerning when reading in the Aspen College Series, “In its 2012-2013 term, the Court continued its practice of overturning lower court judgments in the vast majority of the cases that it fully reviewed. Approximately 72 percent of the time.”

The circuit court appeals process can and has taken years to be decided. The California Proposition 8, a 2008 ban against same-sex marriage, was not resolved and overturned until all final appeals were completed in 2013. Five years later.

There is an outcry surrounding the issue. Fox News Politics reported that advocates state, “Justices have an obligation to settle an issue of such national importance, not abdicate that responsibility to lower court judges.”

Wolfson continued to say, “We are one country, with one Constitution, and the court's delay in affirming the freedom to marry nationwide prolongs the patchwork of state-to-state discrimination and the harms and indignity that the denial of marriage still inflicts on too many couples in too many places."

It seems simple. The Supreme Court needs to make a decision.

If the compelling reasons for an appeals review in the Rules of the Superior Court are:

“a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; (b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort; and, (c) a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court,”

– then it is clear. The United States Supreme Court is called upon to act and solidify this issue for the nation.

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